Summary of Hearings on Clean Water Issues (8-11-06)

August 1, 2006: U.S. Senate Committee
on Environment & Public Works, Subcommittee on Fish, Wildlife,
and Water, Interpreting the Effect of the U.S. Supreme Court's
Recent Decision in the Joint Cases of Rapanos v. United States
and Carabell v. U.S. Army Corps of Engineers on "The Waters
of the United States"

U.S.
Senate Committee on Environment & Public Works
Subcommittee on Fish, Wildlife, and Water
Interpreting the Effect of the U.S. Supreme Court's Recent Decision
in the Joint Cases of Rapanos v. United States and Carabell
v. U.S. Army Corps of Engineers on "The Waters of the United
States"
August 1, 2006

Witnesses Panel II:
Dr. Jonathan Adler, Associate Professor of Law, Case Western Reserve
University School of Law
Dr. William W. Buzbee, Professor of Law, Director, Environmental and
Natural Resources Law Program, Emory Law School
Chuck Clayton, Immediate Past President, Izaac Walton League of America
Keith Kisling, National Wheat Growers and National Cattlemen's Beef
Association

On August 1, 2006 the Senate Environment and Public Works Subcommittee
on Fish, Wildlife and Water met to analyze the recent Supreme Court
decision on two cases involving the Clean Water Act. Subcommittee
Chair, Lincoln Chafee (R-RI) opened the hearing with a brief statement.
He clarified congressional authority to enact legislation for environmental
protection under the interstate commerce clause, even for intrastate
disputes, if the aggregated effect could potentially affect the environment
across state lines. He stated the purpose of the Clean Water Act is
"aimed at restoring and maintaining the chemical, physical and
biological integrity of the nation's waters" and noted the act's
effectiveness since 1972. Chafee then summarized the two cases and
the court's decision.

The Rapanos case involved a developer who filled in wetlands without
obtaining a permit. The plaintiffs questioned the Army Corps authority
to regulate wetlands that are adjacent to navigable waters and connected
only by non-navigable tributaries. The Carabell case involved a developer
who was denied a permit to fill in wetlands, which were separated
from navigable waters by a man-made berm. The plaintiffs questioned
federal authority to regulate wetlands that do not have a direct hydrological
connection to navigable waters.

The Supreme Court in a 5-4 decision, vacated the lower courts decisions
supporting federal authority to regulate the wetlands and remanded
the cases to the lower courts for reconsideration. The justices were
divided on which waterways should be considered part of or directly
related to "waters of the United States" and covered by
the Clean Water Act. Four concurring justices in a plurality opinion
indicated that only adjacent wetlands connected by a waterway with
continuous surface flow should be regulated. Justice Kennedy, who
agreed to remand the cases, indicated that each case should be decided
based on a "significant nexus" between the wetland and navigable
waters. Four dissenting justices indicated that current federal statutory
definitions were appropriate.

Ranking Member, Senator Hillary Rodham Clinton (D-NY) remarked in
her opening statement that the split interpretations of the justices
could have a significant impact on the effectiveness of the Clean
Water Act in the future. The narrower definition of waterways and
connectedness suggested by the plurality opinion would leave millions
of acres of wetlands and tributaries unprotected with devastating
results on water quality. She called on Congress to act to clarify
which waterways are protected by the Clean Water Act.

Senators James Inhofe (R-OK), Lisa Murkowski (R-AK), Frank Lautenburg
(D-NJ) and James Jeffords (I-VT) also gave opening remarks, which
are available on the subcommittee's web page.

The first panel of witnesses represented the federal agencies involved
in these cases. Mr. Crumbles, Assistant Administrator, Office of Water,
U.S. Environmental Protection Agency (EPA) stated that the administration
is "pro-wetlands." President Bush has re-affirmed his "no
net loss" wetlands goal and has requested additional funds in
fiscal year 2007 for wetlands reserve programs within EPA. Since the
court decision, the EPA has issued field guidance to staff to defer
wetland decisions until the agency can complete a new guidance memo
in cooperation with the Corps. Several senators criticized the "no
net loss" goal as poor because it does not try to improve environmental
conditions by increasing the number of healthy wetlands, but just
tries to maintain current ones. Grumbles was also criticized by several
senators for delaying decisions on current wetland permit cases. Some
senators requested the EPA to take action quickly to include the narrower
interpretation of waterways in their permitting process while other
senators wanted the EPA to move forward on decisions based on the
current rules until the lower courts have reached decisions on the
two cases.

Mr. Woodley, Assistant Secretary for Civil Works, U.S. Department
of Army in his testimony stated that each year the Corps makes about
100,000 jurisdictional determinations and issues 80,000 permits related
to wetlands. Senator Murkowski questioned him on how the Corps could
apply their current definition of wetlands to Alaska where many wetlands
are frozen much of the time. Woodley responded that it is hard to
apply "universal principles to an infinite landscape" and
the Corps has many complex determinations in many other states too.

Mr. Cruden, Deputy Assistant Attorney General, Environment and Natural
Resources Division, U. S. Department of Justice, provided more legal
background on the recent cases and two previous Clean Water Act Supreme
Court decisions in 1985 and 2001. He concluded that there was a majority
decision to remand the two cases and a plurality opinion on how to
define regulated wetlands. He indicated that the Department of Justice
would be willing to consider either the plurality opinion written
by Justice Scalia or Kennedy's opinion when deciding on litigation
of future cases. He also indicated that the Justice Department is
developing new procedures based on the court's recent decision and
will defer litigation until they have new guidance documents ready
for all of their staff. Senator Chafee asked for more details on how
the Justice Department is deciding current cases and Cruden detailed
the Justice Department's continued pursuit of litigation against a
Florida homeowner, who dumped raw sewage from his septic tank directly
into a tributary to a navigable waterway. Senator Clinton later asked
if the "human excrement test", referring to the Florida
case, would really fit with the plurality's definition. She also questioned
Cruden about how the Justice Department would treat oil spill cases,
which are governed by the Oil Pollution Act of 1990, but rely on the
definitions of waterways defined in the Clean Water Act. Cruden indicated
the department has not decided how to apply the Rapanos decision to
oil spills yet.

The second panel brought in outside witnesses from law schools and
non-governmental interest groups to analyze the court's decision.
The two attorneys and law professors, Dr. Adler and Dr. Buzbee disagreed
sharply in their testimony on their legal interpretations of the court's
opinions. Dr. Adler indicated that the Corps has over-reached and
too broadly defined wetlands and adjacent waterways. He encouraged
the Corps and EPA to revise their regulations as soon as possible
to limit the scope of their impact on wetlands and non-navigable waters.
Dr. Buzbee indicated that the plurality opinion does not represent
the law and is too narrowly defined. He emphasized that the plurality
opinion was different from Kennedy's opinion and that Kennedy's "significant
nexus" requirement be used to decide which wetlands should be
regulated. During questioning from the senators, the attorneys noted
that the court's decision was complex and confusing and would lead
to even more litigation. Dr. Adler encouraged revisions to regulations,
while Dr. Buzbee encouraged congressional legislation that clarified
the statutory definition of regulated waterways.

The House Appropriations Committee Subcommittee on Interior, Environment,
and Related Agencies held a hearing on July 13 to review the Environmental
Protection Agency's progress on improving environmental conditions
in the Chesapeake Bay. The Government Accountability Office had released
report describing slow progress and high costs during the last ten
years. The report raised concern among representatives on the committee.
Ranking Member Sen. Norman Dicks (D-WA) described the estuary as facing
challenges, and stated that "We have to find better ways of progress
in the Bay."

Anu Mittal from the Government Accountability Office summarized the
main points of the report. Mittal said the Chesapeake Bay restoration
efforts lacked a significant coordination strategy, resulting in large
investments into projects it could never complete. According to the
GAO report, the EPA had also used intra-agency review combining program
actions and modeled projections to determine their results to downplay
deteriorated environmental conditions in the Bay. The EPA findings
were also not reviewed by an agencies or non-governmental organizations.
"The result is a rosier picture of the health of the bay than
may have been warranted," said Mittal.

Ben Grumbles, the Assistant Administrator for Water at EPA, defended
the agency's progress in restoring the Chesapeake Bay. "The Agency
is working with state and local agencies to establish beneficial partnerships
in the cleanup," said Grumbles. He said the EPA "appreciated"
the GAO report because it would help ensure a better service to the
public affected by Bay issues. Grumbles also mentioned that the EPA
has implemented several recommendations from the GAO report. He reiterated
the support the Administration has given the EPA for their efforts.
"The President has charged EPA with accelerating the progress
fro environmental protection the Chesapeake Bay is a model of
how this is done."

Several members of the committee pushed Grumbles for direct answers.
Rep. Jim Moran (D-VA) accused the EPA of lying in their reports to
the American public and also expressed disappointment in their progress.
"The EPA has done everything possible maintain current levels
of pollution in [the Chesapeake Bay]." Moran was joined by Reps.
Norman Dicks (D-WA) and Maurice Hinchey in suggesting that the EPA
revert to the original Clean Water Act standards. They insisted the
grant programs in the Clean Water Act were the most effective in helping
local agencies to handle runoff, point source pollution, and sewage
treatment facilities to prevent toxic releases into the Bay.